KASHMIR ISSUE AND RIGHT TO SELF-DETERMINATION: AN

INTERNATIONAL LAW PERSPECTIVE

Abstract

Kashmir has been remained a bone of contention between India and Pakistan from last seven
decades and both countries came eyeball to eyeball on numerous occasions. After the partition
of Sub-Continent Kashmir was acceded to India through the Instrument of Accession with the
promise to resolve the issue of Kashmir in future by providing them the right of self-
determination. However, the right of self-determination has never been provided to the people
Kashmir despite the fact that United Nations Security Council and UNCIP has passed more than
a dozen resolutions to accord the right of self-determination to people of Jammu and Kashmir.
India has consistently been proclaiming that Kashmir is an integral part of it and thus denied
them the right given by United Nations. On 5th of August 2019, India unilaterally abrogated the
Article 370 of the Indian Constitution that accorded Kashmir a special status. India has turned
entire region into open jail and from last sixteen months eight million people have been struck
inside by 900,000 troops. This unilateral annexation of Kashmir by India is a clear-cut breach of
international law and the UN resolutions that grant the people of Kashmir the right to self-
determination. India is carrying out massive human rights violation in Indian Occupied Jammu
and Kashmir. In reality, Kashmir dispute is the biggest question on the right of self-
determination in international law. This study revolves round the research questions; what is the
status of Kashmir issue under International law? Is it really a matter of right of self-
determination? Therefore, this study is aimed to take into account the Kashmir dispute vis-à-vis
international law on the right of self-determination and also puts into debate the massive human
rights violations by Indian forces in IOK in the light of international conventions on human
rights. Secondary type of date resources along with Qualitative data analysis are carried out to
analyze the status of Kashmir vis-à-vis right of self-determination in this paper.

Key Words: Kashmir, self-determination, International law, India, UN resolutions

Introduction:

Security of the entire globe is associated with the security of an individual or a human security.
The security of an individual is an indication of security of entire society or community.
International law provides every individual the fundamental rights to live, cherish and prosper in
lifei. These rights are available to every individual across the globe irrespective of his cast, color,
creed, religion, and geography. The provisions of International law and International Covenant
on Civil and Political Rights (ICCPR), unambiguously furnish fundamental human rights to the
people. In the view of theoretical prism, right of self-determination is primarily about the
provision of undeniable right to the people of any community to decide about the socio-political,
economic and cultural status. It is an inherent fundamental right of human beings to decide about
their future by their own will as per provisions of international law and UN Charter. Right to
self-determination under international norms and principles is purely vested with people. Edward
L.Deci and Richard M. Ryan developed the Right to Self-Determination Theory (RST) in
international relationsii. This theory is primarily concerned to concentrate on backing inherent
human tendencies and motivations in an effective or influential manner. As a meta-theory for
framing motivational studies, the SDT “focus on how social and cultural factors facilitate or
undermine people’s sense of volition and initiative, in addition to their well-being and the quality
of their performanceiii.” Kashmir is considered to have almost entire pre-requisites necessary for
the state to be recognized as a state in international arena. It possesses well defined territory, a
population of more than 13 million which is quite greater than population of many of African
and European states and has been exercising self-governance system in history. Besides this, it is
a state with multiple resources and also possesses peculiar language, culture, and history. After
the partition of Sub-continent, India illegally occupied the State of Kashmir and denied them the
right to self-determination given by United Nations under international law. It has deployed
massive troops and is on the way to bring demographic changes in the State. India has carried put
massive human rights violation in Indian occupied Kashmir. In past thirty years, almost 100,000
Kashmiris have been died in their fight against Indian brutalities. India has tried to undermine the
freedom struggle of Kashmiri people by deploying 900,000 troops in the valley and has
imprisoned the people in an open jail. The basic provision of international law is that;
“individuals should not be arbitrarily deprived of their lives, and homicide should be deterred,
prevented and punishediv.” These rights are further secured and protected by the ‘Universal
Declaration of Human Rights-1948, which emphasizes on ‘innate freedom and equality, puts a
ban on discrimination and states that, “Everyone has the right to life, liberty and security of
personv.” However, Kashmiris have been ignored, disgraced, and massacred despite the
guarantees provided by the pledges under declarations of international law and it seems that
world is following the age-old concept of ‘Might is Right’ and is deliberately silent on the
massive human rights violations in Kashmir.

Roots of Kashmir Conflict

Kashmir is an internationally recognized issue between Pakistan and India since the breakup sub-
continent. The British government after ruling sub-continent for almost nine decades decided to
decolonize the subcontinent into India and Pakistan. There were almost five hundred and sixty
five princely states during partition and their future was to be determined in accordance with
geographical contiguity along with the will of their people to independently adhere to either
India or Pakistan. In other words, right to freely decide their future was granted to the people of
these princely states and State of Kashmir was among one of them. State of Jammu and Kashmir
was Muslim majority region and thus was supposed to become the part of Pakistan. However,
Maharaja went against the choice of Kashmiris and decided not to accede to Pakistan. When the
Kashmiri people started uprising against Maharaja, internal dynamics of the state began to get
out of his hands and thus to combat insurrection he decided to ask for military help from India.
India conditioned the help with the accession of the state to India. Though there are certain
international law experts that point out their severe concerns regarding the legality of Instrument
of Accession, it was presumably signed between Indian premier and Maharaja of Kashmir on 26
October, 1947. Putting aside the questions that have often been raised on the legality of
Instrument of Accession, it would be acquainted that this instrument also entails the right to
independently decide the future (self-determination) for the Kashmiri people. According to IOA
“after the restoration of law and order in the State of Jammu and Kashmir and the expulsion of
the raiders, its future will be decided in accordance with the wishes of the people of the State vi.”
Similarly United Nations also adopted the similar version regarding the future standing of State
of Kashmir and lodged the notion of self-determination that is to be determined by organizing a
transparent plebiscite under the UN, and continuously maintained this concept in its 24
resolutions regarding the solution of Kashmir. However, despite the promises made under United
Nations resolutions and declarations Kashmiris are still devoid of their right of self-
determination. In other words, Kashmir must be contemplated as an unsettled agenda of the
partition of sub-continent.

Kashmir: an Integral Part of India?

India has consistently been denying the Kashmiris their right of self-determination declaring
Kashmir as integral and inseparable part of India. Keeping this notion of integral part in mind it
denied from conducting an impartial plebiscite in Kashmir and thus stepped back from United
Nations resolutions on Kashmir issue. After the rise of tensions between Indian Premier and
Sheikh Abdullah on the resolution mechanism of Kashmir issue, India incarcerated Sheikh
Abdullah and spuriously promulgated a legislative resolution that acceded Kashmir to India in
1952. This fraudulent act was considered to be an unambiguous violation of directions under UN
resolution of March 1951. Another resolution was passed by United Nations on January 20,
1957, and reinvigorated the principles encompassed in its previous resolutions that affirm that
any future disposition of Kashmir will only be determined by the will of its people. Both the
resolutions explicitly establish that, “any action which the Kashmir Constituent Assembly may
have taken or might attempt to take to determine the future shape of state or any of its part would
not constitute the disposition of the state and that election of the State’s Constituent Assembly
cannot be a substitute for plebiscitevii.”In the light of UNSC resolutions, it can be ascertained that
these resolutions nipped the idea of ‘integral part’ in bud and is thus has no legal standing
altogether.

Right of Self-Determination: A Comparative Analysis

It is a central principle of international to accord the people the right to self-determination for
deciding their fate for future. It is the core principle of international law and fully protected in the
charter of United Nations and International Covenant on Civil and Political Rights for all
peopleviii. The concept of self-determination is as old as the Greek city state(s) remained
significant during French and American revolutions, refined by Woodrow Wilson in his fourteen
points, thus incorporated into the League of Nations and got centrality in the Charter of United
Nationsix. After the termination of World War II, numerous Asian and African states got
independence from European Colonialism under the slogan of right to self-determination. United
Nations in its exclusive resolutions 181and 194 concerning Palestine dispute to accord people of
Palestine the right to self-determination, but Israel negated these resolutions depriving
Palestinians from their due right. Initially, UN under its resolution provided more than half of
land to Israel (nearly 53%) and 47% land was accorded to Palestine. However, Israel went
against the UN resolutions with the assistance of USA and now has occupied more than 80% of
Palestine soil. East Timor is considered to be a state that was not autonomous in past, as it
acceded to Indonesia by the will of its people after its break-up from Portugal in 1970s.
Nevertheless, persistent allegations have been raised against Indonesian government for
forcefully annexing East Timor without popular support. However, people decided to dispatch
from Indonesia and East Timor got seceded from Indonesia under the umbrella of right to self-
determination. Similarly, in February 2008, Kosovo got independence from Serbia by exercising
its right of self-determination. In case of Crimea, according to Johan Ryan, “The UN charter
gives people the right to self-determination and by virtue of that right they are free to determine
their political status. Quebec in Canada has exercised that right, and there should be no reason
why Crimea could not do the samex.” Consequently, Crimean Parliament via organizing a
general referendum decided to transfer Crimea to Russia. In case of Kashmir, the right of self-
determination is far from attainment. Kashmiri people have persistently been pursuing their
freedom struggle from last seven decades and thousands of people have lost their lives but they
are still devoid of their right of self-determination. India has denied them the right given by
United Nations resolutions and has perpetually been violating international law. There are almost
two dozen UN resolutions that perpetuate the license of self-determination to Kashmiris. India
has chipped these resolutions away on ground and rebuffed the due right to the people of
Kashmir. Historical study elucidates that there have been states that were farther away from
human rights violations like Crimea even then Crimea got independence from Ukraine.
However, despite the unprecedented human rights violations and unparalleled brutalities by
Indian troops in IOK, Kashmiris are bereft of their right of self-determination that is inherently
their fundamental right.

Abrogation of Article 370: an International law perspective

After the partition of Sub-Continent, erstwhile princely states were directed to accede to either
India or Pakistan in accordance with geographical congruity and people’s desires. State of
Kashmir was among one of these princely states and was a Muslim majority state. After its
conditional accession to India, Indian legislature inculcated Article 370 in its constitution in 1949
that exempts the Kashmir from Indian Constitution. It provides Kashmir a special status and
allows it to promulgate its own laws except in defense, foreign affairs, finance and
communications. This article furnishes Kashmir its own flag and exclusive property rights and
debars any outsider from buying property in the region. This article extends the jurisdiction of
Indian constitution to finance, communications, defense and foreign affairs and explicitly
articulates that any legislation outside the established scope will have to take prior approval from
state government. Besides article 370, article 35A was introduced in 1954 in Indian Constitution
to reinforce the past provisions regarding status of Kashmir and also define the permanent
residents of state. It also debars the outsiders from buying land or properties, permanent settling,
securing education scholarships and governmental jobs etc. Both these articles exclude Kashmir
from Indian dominion. However, Narendra Modi led BJP regime abrogated the article 370 on 5 th
of August 2019 and thus devoid Kashmir of special status once granted under own Indian
Constitution. It has enforced curfew in the region with communications blackout and has taken
over young boys as well as political leadership of Kashmir. It has deployed more than 900,000
troops there and made Kashmir a ‘living hell’ by carrying out massive human rights violations
with impunity. After this revocation of article 370, a new debate has begun whether Indian act is
legitimate or illegitimate? Several international law experts have expressed their views straight
from shoulder and berated the Indian unilateral attempt and delineated it as an unequivocal
violation of UNSC resolutions. Constitutional law expert, Faizan Akhtar emanated out that this
Indian move has restored the Kashmir to its original status prior to Instrument of Accession.
According to him, IOA has the character of international treaty that was primarily signed
between two sovereign states. Similarly other experts also proclaim that by abrogating article
370. India’s illegal annexation of Kashmir is similar to Israel’s aggressive measures against
Palestinians by occupying Golan Heights and Jerusalem. Later on after 1967 war, Israel
expropriated Eastern part of Jerusalem and West Bank (parts of it). The General Assembly
denounced the annexation and called upon Israel to “rescind all measures already taken and to
desist forthwith from taking any action which would alter the status of Jerusalem xi.”
Consequently, in case of Kashmir, India’s move to annex and to integrate Kashmir into Union
territories is absolutely null and void in the light of United Nations resolutions mentioned above
that govern the illegal annexation of Palestinian territory by Israel. Henceforth, India’s
abrogation of article 370 is null and void under international law and even under its own
constitution.

International Law Perspective and Right of Self Determination

Kashmir issue directly comes under the shelter of International Humanitarian Law and
International Human Rights Law which proscribe the despotic denial of life under any state of
affairs. According to Article 6 of International Covenant on Civil and Political Rights (ICCPR),
states are prohibited to take away the right to life from people even during state of emergency. Its
Articles 4 and 7, explicitly ban torture, even in times of national emergency or when the security
of the state is threatenedxii. India has placed more than 0.9 million troops in IHK with the ratio of
1:8 (1 personnel over 8 people) that are carrying out deliberate atrocities over the public and thus
are violating norms of IHRL and IHL, being subscriber to both laws. Without the reinforcement
of laws, world would be like a jungle where principle of ‘Might is Right’ prevails. It is thus quite
necessary to look Kashmir issue under tight scrutiny of international law. International
Humanitarian Law that is pertinent to right to self-determination in its Article 3 that is common
to UN Geneva Conventions of 1949, articulates the principles that govern the parties involved in
an internal wrangling including militia. It provides that, “Persons taking no active part in
hostilities, including members of armed forces who have laid down their arms and those placed
hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, color, religion or faith, sex,
birth or wealth, or any other similar criteria xiii.”However in IOK, Indian forces are blatantly
violating the norms of International Humanitarian Law, and rapes, hostages and innocent killings
have reached to historically an unprecedented level. These unsanctioned actions of India are
unambiguously violating the standards and norms elaborated under IHL. Besides IHL and IHRL
provisions regarding right of self-determination, there are two more International Declarations
that sanction the Kashmiris an inherent right to self-determination. International Covenant on
Civil and Political Rights and International Covenant on Political and Economic Rights under
their Common Article 1 mention that, “All people have the rights of self-determination, by virtue
of that right they freely determine their political states and freely determine their economic,
social and cultural developmentxiv.”

India’s Hegemony: Challenging United Nations

After the partition of Sub-Continent and subsequent occupation of Kashmir by India added insult
to injury to the stern relationships between two historic rivals. India brought the matter before
United Nations in 1948, and to control further escalation between two South-Asian rivals, United
Nations established United Nations Commission on India and Pakistan in the same year. This
commission established an observatory organ to keep an eye on armistice between India and
Pakistan across the LoC. Since then, UNMOG observes border skirmishes across Line of
Control. However, after endorsing Simla Agreement in 1972, India denied the access to observer
group in the noticeable areas of Kashmir that are underprivileged and repressed by Indian forces.
Since then border skirmishes have been ongoing from Indian side as a result of which there are
always chances of escalation between two arch rivals. After the endorsement of Simla Accord,
India questioned the legal existence of UNMOG and denied the validity of this group anymore.
By doing so, India is deliberately discrediting the United Nations Commission and its resolutions
on Kashmir. India proclaimed that role of UNMOG has been replaced by Simla Accord, however
United Nations rebuked the Indian stance by proposing that mandate of UNMOG can only be
terminated by UNSC. India went a step ahead and in 2014, ordered the UNMOG to vacate the
state building which has been under their use from several decades. However, astonishingly UN
gave a muffled response over Indian rickety measure. There are numerous resolutions of UNSC
and UNCIP that gave the Kashmiris the right to self-determination via organizing an impartial
plebiscite in the region under the realm of United Nations. However, seven decades have been
passed, but Kashmiris are still devoid of right to self-determination due to ineptness of United
Nations and deliberate silence of global powers because of their collateral interests.

Conclusion

Kashmir dispute is considered to be an unresolved agenda of partition of Sub-Continent. It has

been under United Nations’ forum from last seven decades and is longest unsettled issue under
its Charter. Kashmir issue has become a test case for the United Nations and its Charter. It has
promulgated multiple resolutions to resolve the issue but it has remained inefficient and inept in
resolving the dispute. Kashmir issue is a major cause of socio-political unrest in South-Asia and
two arch rivals (India and Pakistan) came eye-ball to eye-ball on numerous occasions. There are
always chances of nuclear escalation between two countries which if happen would have
catastrophic repercussions not only for the region but also for entire global community. After
abrogation of Article 370, tensions are further exacerbated between two countries and there are
instances that both countries may head towards nuclear war in future. After abrogation of Article
370, Kashmiris are under world’s largest siege with complete communication blackout. There
are chances that Modi led extremist Indian regime strives for demographic change in the region
which is explicitly violation of 4th Geneva Convention which states that, “it is prohibited for the
Occupier to transfer civilians from the Occupying Power into the Occupied Territory. This is to
prevent the Occupier from demographically transforming the territory in order to advance a
claim of sovereignty and undermining the Occupied People’s right to self-determination xv.”
Kashmiris struck inside their houses are maliciously treated by Indian troops deployed in IOK.
There are massive human rights violations by India and several reports of United Nations Human
Rights Commission have reinstated the amount of violations that India is doing inside Kashmir.
But deaf ears of world are not hearing the voices of innocent Kashmiri people and there is a
deliberate silence of global powers on the issue. Situation in Kashmir is similar to East Timor,
Kosovo and South Sudan that are successfully equipped with their right of self-determination
and are not independent. However, world community has failed to entitle Kashmir the mandate
of self-determination despite the right provided by UNSC and UNCIP resolutions. Kashmir
dispute has become a biggest question mark on so- called Western values and UN Charter.
Therefore, in order to uphold the norms and principles of International Law, world community
must take initiative to resolve the dispute. It must have to debar India from taking illegitimate
aggressive actions that are adding fuel to the already strained situation in the region. In sum,
United Nations must take practical measures to Kashmir the right to self-determination.
i
Velasquez Rodriguez v. Honduras, “The Right to Life in International Law,” 1998 (accessed on June 12, 2015)
at www.icrc.org

ii
Deci, E. L., & Ryan, R. M. (1985). Intrinsic motivation and self-determination in human behavior. New York:
Plenum.

iii
Deci, E. L., & Ryan, R. M. (2000). The “what” and “why” of goal pursuits: Human needs and the self-
determination of behavior. Psychological Inquiry, 11, 227-268.

iv
Deci, E. L., & Ryan, R. M. (2000). The “what” and “why” of goal pursuits: Human needs and the self-
determination of behavior. Psychological Inquiry, 11, 227-268.

v
The Universal Declaration of Human Rights: Human Rights Charter,” (accessed September 1, 2014) at;
ww.un.org/documents.

vi
V. P. Menon, Transfer of power in India, Chennai Orient Longman, 1957.

vii
The Universal Declaration of Human Rights: Human Rights Charter,”(accessed September 1,2014) at
ww.un.org/documents.

viii
Resolution of the Security Council, March 30, 1951. The Official Website of the Government of Pakistan.
Accessed on June 24, 2015 at; http://pakistanspace.tripod.com/archives/51un.htm.

ix
Harsh Dobhal, Writings on Human Rights, Law, and Society in India: A Combat Law Anthology: Selections
from Combat law, Human Rights Law Network New Delhi, 2011

x
Professor John Ryan, Crimea vs. Quebec: The Legal Right to a Referendum on Self-Determination, World
News Daily-Information Clearing House, March 12, 2014. Retrieved on September 5, 2015 at;
http://www.informationclearinghouse.info/article37924.htm
xi
UN Resolution On Kashmir Irrelevant - Kofi Anan (accessed September 1, 2014) at
www.thekashmir.wordpress.com.
xii
Charter of the United Nations, Chapter I: Purposes and Principles (accessed September 1, 2014) at
www.un.org/en/documents.com.
xiii
Charter of the United Nations, Chapter I: Purposes and Principles (accessed September 1, 2014) at
www.un.org/en/documents.com
xiv
International Covenant on Civil and Political Rights,” United Nations Human Rights, (accessed September 1,
2014) at www.treaties.un.org
xv
Charter of the United Nations, Chapter I: Purposes and Principles (accessed September 1, 2014) at
www.un.org/en/documents.com